The Voting Rights Act, Section 2, and Data Storytelling
The Voting Rights Act of 1965 is the most successful civil rights legislation in American history. Born from the blood, sweat and tears of generations, over the course of decades, the law has been said to be the point at which America finally became a democracy. Enjoying bipartisan support for several decades, it provided protection for minorities — particularly black Americans — who wished to exercise their constitutional right to vote.
It accomplished this through two important Sections, Section 2 and Section 5. Section 2 expressly prohibits voter discrimination, full stop. It also defines which states, through their racist histories, should be subject to the additional scrutiny of preclearance. Section 5 defined the regime of preclearance, prohibiting any policy revisions that have not first been reviewed by the Department of Justice.
Things changed in 2013. The Shelby v. Holder decision, the majority opinion authored by Chief Justice, severed the “preclearance” provision (Section 5) from the rest of the statute, badly weakening its protective power. Preclearance required southern states to prove that any revisions to their election administration did not have a discriminatory impact, needlessly blocking access to the ballot as had been the status quo for decades.
That was then and this is now, argued Justice Roberts. The law served its purpose. State sovereignty is the principle at stake — not whatever remnants of racism that may or may not exist. And with an astonishing degree of hubris, the Chief Justice killed preclearance and jeopardized the future of fair elections.
Section 2, however, remains intact for the time being. Fortunately, the language and its current interpretation affords us a wide berth for bringing forward arguments. It covers effect and intent — and explicitly prohibits discrimination in voting in unambiguous terms. There are other provisions that provide leverage, I would imagine.
For now, it’s all we got. This is the first of a series of posts in which I interpret Section 2 in mathematical form. Ultimately, whatever arguments we bring before the court will need empirical evidence. There may be a role for us data junkies to play.
